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Declaratory judgment actions can be uniquely useful tools for probate practitioners; they’re expressly authorized by statute in F.S. 86.041, F.S. 86.021, and F.S. 736.0201(4)(f), and they’re exceptionally flexible, often providing the only means to adjudicate a problematic clause that’s contained within an otherwise perfectly valid will. But there are important limitations.

First, F.S. 733.213 tells us a court can’t interpret or “construe” a will until after it’s been admitted to probate. That makes sense, why waste judicial resources on a declaratory judgment action involving a will that may never have legal effect.

Second, whether your declaratory judgment action is subject to the über short 3-month limitation period for will contests under F.S. 733.212(3) isn’t always clear. Why? Because F.S. 733.212(3) applies to any challenge “to the validity of the will.” And declaratory judgment actions often involve challenges to the validity of a particular clause within an otherwise valid will. For example, if a will has a clause exercising a power of appointment, whether that clause is valid or not could radically re-shape the outcome of your case. A will could also include some kind of conditional gift that’s invalid on public policy grounds (marriage restraints are always red flags), while the will itself remains valid.

What’s it mean to challenge the “validity” of a will and why does it matter?

Generally speaking, if you’re contesting one of the statutory prerequisites for admitting a will to probate, you’re litigating the kind of validity case that’s covered by F.S. 733.212(3). In order for a will to be admitted to probate:

  1. the testator must have complied with the “execution” requirements for wills under F.S. 732.502,
  2. the testator must have been “competent” under F.S. 732.501,
  3. the testator must have been free of “fraud, duress, mistake, or undue influence” under F.S. 732.5165, and
  4. the testator cannot have “revoked” the will by writing (F.S. 732.505) or conduct (F.S. 732.506).

By contrast, if you’re not contesting one of these prerequisites for admitting a will to probate, but are instead contesting the validity of a particular clause within an otherwise valid will, you’re not litigating the kind of validity challenge that’s covered by F.S. 733.212(3).

Which side of this line you fall on can have serious consequences. That’s what the litigants in the Tendler and Gundlach cases found out. In both their claims were thrown out as time barred under F.S. 733.212(3). And in both the 4th DCA subsequently reversed, reviving the claims on appeal. If you make your living drafting wills, probating wills, or litigating wills, how the 4th DCA worked its way through this fascinating statutory-construction puzzle is a must read.

Case Study No. 1

Tendler v. Johnson, 332 So.3d 521, 2021 WL 6057948 (Fla. 4th DCA December 22, 2021)

In Tendler the decedent’s will contained a clause attempting to exercise a power of appointment (POA). POAs are the Swiss Army knife of modern estate planning. They’re deceptively simple yet adaptable to almost any planning contingency. And they’re ubiquitous, often incorporated into even the most basic estate plan for all sorts of good reasons. POAs don’t get litigated all that often, but when they do the stakes can be huge.

In January of 2019 the challenger in this case was served with a “Notice of Administration,” triggering the 3-month limitation period under F.S. 733.212(3), which provides in relevant part as follows:

733.212 Notice of administration; filing of objections.— … (3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

When is a validity challenge not a “validity” challenge?

In October of 2019 the challenger contested the validity of the will’s POA, but not the will’s admission to probate. Apparently concluding that F.S. 733.212(3) can be used to time bar any challenge to any part of a will, not just its admission to probate, the probate judge dismissed the case as being time barred. Wrong answer said the 4th DCA. Here’s why.

The 4th DCA started by working backwards from F.S. 733.103(2), which tells us the legal effect of a will’s admission to probate.

The probate of a will signifies that a will was properly executed and witnessed, and that the testator had testamentary capacity when executing the will. § 733.103(2), Fla. Stat. (2018) (“[T]he probate of a will in Florida shall be conclusive of its [1] due execution; that it was executed by a [2] competent testator, [3] free of fraud, duress, mistake, and undue influence; and that the will was [4] unrevoked on the testator’s death.”).

OK, so this statute’s telling us that if a court enters an order admitting a will to probate, that court order conclusively establishes as a matter of law that the testator complied with all of the statutory prerequisites for admitting a will to probate. So, the 4th DCA reasoned, if the validity challenge that’s being asserted isn’t contesting one of these prerequisites for admitting a will to probate, it’s not the kind of validity challenge covered by the 3-month limitations period in F.S. 733.103(2). So saith the 4th DCA:

The use of the word “validity” in chapter 733 pertains to the compliance with the technical requirements of execution—signatures and witnesses—and to the testamentary capacity of the testator—the required factors for a will to be probated. …

Section 733.212(3)’s use of the term “validity of the will” relates back to the use of the same term in section 733.107, so it pertains to the admission of a will to probate or a revocation of probate. Here, Tendler challenges not the validity of the will but the effectiveness of the Decedent’s attempted exercise of the Rison Trust’s limited power of appointment in article 4 of the will. Tendler’s challenge is outside of the three specific issues covered by section 733.212(3). That statute speaks of the “validity of the will,” not of the “validity of the will or a part thereof.”

Tendler’s objection to the effectiveness of the Decedent’s attempted exercise of the Rison Trust’s power of appointment requires the court to construe article 4 of the will as well as provisions of the Rison Trust and the Tendler Trust. This was not a challenge to the “validity of the will” within the meaning of section 733.212(3), so the circuit court erred in dismissing Tendler’s response to the PRs’ petition as time-barred.

And remember, you can’t “construe” a will until after it’s been admitted to probate

The court also reasoned that if you can’t file a declaratory judgment action until after a will’s admitted to probate, it doesn’t make sense to equate all declaratory judgment actions as objections to a will’s probate. So saith the 4th DCA:

Essentially, Tendler and the PRs both sought to have the circuit court construe a provision of the will. A petition to construe a will is premature before the will has been admitted to probate. § 733.213, Fla. Stat. (2018) (“A will may not be construed until it has been admitted to probate.”); In re Est. of Dahl, 125 So. 2d 332, 335 (Fla. 2d DCA 1960) (explaining that “[n]o petition or complaint for construction may be maintained in any court until the will has first been probated”); Cody v. Cody, 127 So. 3d 753, 756 (Fla. 1st DCA 2013) (holding that the order construing a will to determine beneficiaries was premature as “the probate court has not actually admitted the will to probate”); First Nat’l Bank of Miami v. Risolia, 200 So. 2d 260, 260 (Fla. 3d DCA 1967) (finding that “[t]he circuit court has jurisdiction to construe the provisions of a will so long as the will has first been probated and the circuit court was the court first obtaining jurisdiction for construction”). …

Finally, this case concerns the obligation of the Rison trustee in light of the will’s exercise of the limited power of appointment contained in the Rison Trust. The procedural path of this case supports the notion that Tendler’s claim should not have been dismissed. The PRs brought the Trust/will conundrum before the probate judge with notice to Tendler. It is as if the PRs filed within the probate case a declaratory judgment action with regard to the Rison Trust assets. As pointed out in oral argument, the obligations of the Rison trustee might well have been litigated in Maryland, the situs of the trust, or otherwise outside of probate. Once the PRs injected the issue into the Florida probate proceeding, with notice to Tendler, the principle of fundamental fairness favors Tendler’s ability to have a voice in the court’s resolution of the issues.

Case Study No. 2

Gundlach v. Gundlach, — So.3d —-, 2022 WL 1654815 (Fla. 4th DCA May 25, 2022)

In Gundlach a father (testator) wanted his estate to go first to two sons, then to their respective children (testator’s grandchildren). One of the sons remarried after his wife passed away. This second wife had children from a prior relationship.

Testator was worried that some part of his estate might end up going to his son’s second wife or her children (not his grandchildren). Testator figured the best way to make sure the family assets stayed within the family was to include a clause in his will that created a trust for remarried son, which would remain in place for as long as son remained married. If son with second wife were ever not married, then his trust goes away and he gets his share of the family inheritance outright. That sounds a lot like a restraint on marriage.

Here’s how the 4th DCA described the will:

… the will stated that if at the time of decedent’s death or any time thereafter, Appellant is not married because of divorce, death, or otherwise, then the Trust shall not be established, and if established, it shall terminate, and all the assets which would have been placed in the Trust would be delivered outright to Appellant, provided Appellant first executed an irrevocable agreement between himself and his children agreeing that all assets he received from the estate will be conveyed only to his biological children and no others.

Unlawful restraint on marriage?

Anytime a will or trust conditions a devise on a beneficiary’s marital status there’s a risk that condition’s going to be invalidated on public policy grounds. For a solid explanation of this area of the law you’ll want to read Manipulating the Conduct of Beneficiaries with Conditional Gifts by Texas law professor Gerry Beyer. Beyer writes for a Texas audience, but the legal principles are widely applicable and just as useful for Florida practitioners. Here’s an excerpt:

Marriage is often seen as the foundation of the family unit and therefore one of the pillars upon which our society is based. Because of the importance of marriage, Texas courts generally have found restraints on marriage unenforceable whether resulting from a promise not to marry or a condition forfeiting rights in case of marriage. See Southwestern Bell Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex. Civ. App.—San Antonio 1976, writ denied). Further, the United States Supreme Court has found marriage to be a constitutional right as an aspect of liberty protected by the Due Process Clause of the Constitution. Zablocki v. Redhail, 343 U.S. 374 (1978). Any limitation on the right to marry would seem unconstitutional and therefore unenforceable by courts, as the government actors enforcing provisions in wills and trusts. Interestingly, in spite of these policies, some conditional limitations on marriage, especially those where the dominant motive is to provide support for an unmarried or suddenly separated, divorced, or single-by-death beneficiary, are upheld. …

As a general rule, conditions that a beneficiary must be divorced to receive a benefit have been found to be contrary to public policy. In Texas, however, a provision requiring divorce as a precursor to receipt of a benefit was upheld where the testator’s dominant motive was to provide support for the beneficiary if the beneficiary became divorced or widowed. Hunt v. Carroll, 157 S.W.2d 429 (Tex. Civ. App.—Beaumont 1941, writ ref’d).

Against this backdrop testator passed away. Shortly thereafter his will’s admitted to probate and everyone’s served with a Notice of Administration triggering the 3-month limitations period under F.S. 733.212(3).

After the 3-month limitations period lapsed, remarried son filed a petition asking the court to construe his father’s will and invalidate the clause leaving his share of the estate in trust on public policy grounds. Remarried son “asserted that the condition that he no longer be married in order to receive an outright bequest was unlawful and contrary to public policy.”

Is a challenge to a restraint on marriage a challenge to the “validity” of the will? NO

The petition was challenged as being time barred. Trial-court judge bought the argument and the case was dismissed. On appeal the 4th DCA ruled — again — that construction actions that aren’t contesting any of the statutory prerequisites for admitting a will to probate aren’t the kind of “validity” challenge covered by F.S. 733.212(3). So saith the 4th DCA:

Applying our analysis in Tendler, Appellant’s petition in this case likewise did not challenge the “validity of the will” within the meaning of section 733.212(3). As discussed above, Appellant’s petition sought (1) a determination as to the validity of all or part of the testamentary trust; (2) construction of the testamentary trust; and (3) a declaration of rights under the testamentary trust pursuant to section 736.0201(4)(a), (e)–(f), Florida Statutes (2021). Appellant’s petition challenged the effectiveness of the provision of the will concerning the condition regarding his marriage. However, pursuant to Tendler, such a challenge in Appellant’s petition to “all or part of the testamentary trust” created by the will did not amount to a challenge to the “validity of the will” as used in section 733.212(3), which Tendler explains refers to the technical requirements for a will to be probated.

As such, guided by the analysis in Tendler, we hold that section 733.212(3) does not bar Appellant’s petition. Accordingly, the probate court erred in dismissing Appellant’s petition as untimely under section 733.212(3). We reverse the order granting Appellees’ motion and dismissing Appellant’s amended petition with prejudice, and remand for further proceedings.

What’s the takeaway?

While it may be satisfying to win a reversal on appeal, no one wants to incur the costs and delays inherent to this kind of “win” just to get passed the starting gate on the merits of your underlying case (which is what happened above). So what’s to be done?

The easy answer is to avoid the issue altogether. And how might that be done?  If at all possible file your declaratory-judgment action before your 3-month limitation period runs under F.S. 733.212(3). Even if you’re 100% clear that you’re not contesting any of the statutory prerequisites for admitting a will to probate so you’re case is 100% not the kind of validity challenge covered by F.S. 733.212(3), the best way to “win” this argument is to never have it. But if you do find yourself in the middle of one of these arguments in spite of your best efforts, no matter what side of the case you might be on you need to know the facts and logic of the Tendler and Gundlach cases cold. In this context they’re simply too important to ignore. You’ve been warned …